Straws, Tubes and Needles, A Pyrrhic Compromise

In Dauphin County, Pennsylvania, Judge Lawrence F. Clark Jr. made a ruling that shakes the foundation of the magic black box that has convicted more drivers of drunkenness than any other. Via TheNewspaper.com , Judge Clark found in Pennsylvania v. Schildt :

The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant’s breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent,

As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,

Breaking away from the magic black box myth is a huge step forward in the elevation of forensic science to empirical proof, rather than religious adherence. But as victories go, it may not be one that makes things a lot better for people.

Blowing into a magic black box may not be all its cracked up to be, but on the intrusiveness scale, it beats the alternatives , argued before the Supreme Court yesterday in Missouri v. McNeely, which SCOTUSBlog’s Lyle Dennison wrote provided about as clear an indication that the court is heading toward a compromise on the use of drunk driving blood draws as one can get.

Most of the hour-long argument was spent in imagining the details of such a compromise outcome: start with the premise that getting a warrant is the preferred approach, but then define a set of “exigent circumstances” that will excuse the inability to get one within a fairly brief time — perhaps no more than a half-hour. There would be no authorization, it appeared, for warrantless blood samples, across the board, on the premise that alcohol is always going to be disappearing fairly rapidly from the human bloodstream.

Let’s play out the scenario argued before the Court. Assuming there is no blanket authority to draw blood rather than get a warrant to do so, the police officer pulls a driver over and hits number 7 on his speed dial.

Cop: Judge, I need a warrant to draw blood.Judge: What do you have, Joe?Cop: Swerving all over the place, Stinks of gin. Bloodshot eyes and slurred speech. The usual.Judge: Done. Hope you got a clean needle, Joe. Heheheh. (chuckle optional)

The end result is that the driver gets a needle in his arm. Or the other side of the compromise.

While the judge could, theoretically, refuse to authorize the warrant for the blood draw, and end the roadside nightmare, bear in mind that the only information she receives is what the cop provides. There is no one to inform the judge that the driver is a diabetic who hasn’t touched a drop of booze, or had one shot on the way out of the party and isn’t impaired at all. Or even that the cop is full of it, and is miffed that the driver was disrespectful and the cop will use the needle to teach the driver manners.

This is what the argument was really all about. And if the blood draw fails to show that the driver was drunk, then he’s sent on his way and no one ever hears about it again. No, there will be no civil rights suit, because a judge authorized the warrant. No, there will be no suit because the cop lied, since there is no way to prove that happened. It’s either a needle and prosecution or a needle and a pass.

So does no one escapes the needle? Not exactly, as there is always the tube. If the Supremes thought the needle was intrusive, they probably will think the same of the tube. And demand a warrant as well, unless it isn’t forthcoming fast enough, in which case they won’t.

At Volokh Conspiracy , Orin Kerr also writes about oral argument in McNeely, which I assume means he was present even though it isn’t clear. He raises another possibility, even more disturbing.

Several Justices caught on to one of the reasons why it might not matter much: The warrant protection doesn’t mean very much here because the facts of DUI cases and blood draws are very standardized. Requiring a warrant may amount to a formality. Along the same lines, there’s an interesting question as to whether the inevitable discovery exception would apply were a court to require a warrant that an agent does not obtain. If the court requires a warrant and an agent conducts a warrantless search anyway, can the agent argue that the blood recovered should be admitted anyway under the inevitable discovery exception to the exclusionary rule because he would have successfully obtained a warrant if he had not conducted the warrantless search?

Since every cop gets a blood draw warrant for the asking anyway, what’s the point of the charade of pretending to honor the Fourth Amendment. It just means a judge doesn’t get a good night’s sleep, since the cop is going to get his evidence one way or another.

Boiling all of this down to its basics, there are a few elements that no longer appear in dispute. The foremost concern of the courts is that police and prosecutors are not denied evidence of drunk driving, so that no alleged drunk driver escapes conviction. The Court may not be thrilled at the prospect of warrantless blood draws, but as with convicting a few innocent folks to make sure we get all the guilty ones, it’s a necessary evil that there will be some collateral damage in order to win the war against drunk driving.

And it’s just a baby step from a needle in the arm to a tube in the genitals. Given the options, it makes the magic black box look much better than it used to, even if it is scientific nonsense.

Perhaps I’m not familiar with American jurisprudence, but it appears from the judges decision that he’s not saying that the ‘magic box’ is generally inaccurate, but that he’s saying that the calibration and verification procedures were developed when the range to be tested was from .05 to .15, and now that there are differing punishments available for offenders blowing over .15, the instrument is not capable of reliably distinguishing BACs over .15. (the legal standard for presumption of impairment in Penn being .10.)

The common language restatement being that the instrument can tell if you’re ‘impaired’, but cannot reliably determine if you’re ‘really really impaired’ for the purposes of a sentencing enhancement? I didn’t see anything in the decision that questioned the accuracy of the instrument, rather, the judge questioned the assumption that the linear relationship observed between the .05 and .15 BAC values would continue above and below that range. It also appears that the manufacturer of the instrument is making and using their own reference solutions, which is against the law in Penn. Naughty indeed.

I’m not sure what any of this had to do with blood samples and warrants.

The PA decision is the latest in a long line of decisions about the magic black box, coming from various states and questioning its validity and efficacy. It’s just one of many concluding that its accuracy is in question and cannot be proven.

It’s used here to juxtapose the problems with the Breathalyzer5000 and the next level of intrusiveness. In other words, this isn’t really a post about the Breathalyzer5000 at all.

What I am horrified here is the collection of blood samples by policemen. That is a medical procedure, with a risk of death if botched, and it is clearly medically unacceptable that laymen conduct it.

In Finland, the system works the following way:* police can stop anyone driving a motor vehicle for breathalyser check without any justification at all.* a positive breathalyser test is a basis for blood test, which can be taken in the nearest public hospital. If necessary, the policemen will restrain the suspect while the duty nurse or doctor takes the sample. The sample is then analysed in the lab of the hospital.* If the suspect agrees, he can submit to a breathalyser test done at the police station using a special, desktop-type, calibrated device. The calibration is done by the Research Centre of Finland at regular intervals.* The suspect is always released after the sample, unless other causes for detention are present.* Upon positive sample, the prosecutor issues a fine, unless the case is aggravated (over .15%) or the prosecutor seeks prison sentence. The fine can be appealed to the court. In such case, the prosecutor cannot increase the government’s request for sentence. Aggravated cases always go to court.

I think that, as you wrote, the judge’s comments about overall validity were based on the manufacturer making its own reference standards for calibration. [The extrapolation beyond the calibrated range is a separate issue.]But I (as a laboratory technician) don’t see any real problem with the technique itself. I certainly have more faith in machines than i do eye-witness testimony. The bigger problem with instrument reliability is operator bias, deliberate or acidental. All such instruments and techniques should be subject to tests of unknowns, where some (presumably) independent agency submits known samples (to the lab indistinguishable from regular samples) to check the accuracy and reproducibility of the labs. I am surprised this independent verification doesn’t seem to be raised more often (or written about which is the only way i would hear).

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Scott H. Greenfield

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